On Tuesday the European Court of Justice found in favor of a Spanish man who has spent the last five years waging a legal battle against Google over the ‘right to be forgotten’ on the internet. It is a landmark ruling, and one that has sharply divided commentators, who have (perhaps erroneously), on the one side viewed it as a victory for online privacy, while on the other seen it as a dangerous example of censorship.
The judges ruled that under existing EU Data protection legislation, individuals can ask a search engine (not just Google) to remove search results about them that ‘appear to be inadequate, irrelevant or no longer relevant or excessive … in the light of the time that had elapsed.’ This may be true even if the information is factually accurate, and may,
‘Override… not only the economic interest of the operator of the search engine but also the interest of the general public in having access to that information upon a search relating to the data subject’s name.’
If a search engine does not comply with the request, a person can ask a local judge or regulator to step in.
The original case involved businessman Mario Costeja González’s struggle to remove information relating to social security debts owed in 1998 (resulting in a forced real-estate auction) from Google search results,
‘I was fighting for the elimination of data that adversely affects people’s honour, dignity and exposes their private lives. Everything that undermines human beings, that’s not freedom of expression,’ said Costeja González.
The ruling, which can cover things such drunken teenage photos posted to Facebook, may now lead to a deluge of requests for the removal of personal information from search engines, with more than 200 already in the pipeline from Spanish citizens alone.
Many privacy campaigners and data protection watchdogs, particularly in Europe, have welcomed the decision, arguing that in the past people did not have every aspect of their lives recorded, stored, and made accessible to everyone forever, and that the concept of privacy means allowing past indiscretions to fade and be forgotten.
Because complaints will be decided on a case by case basis, with no requirement to remove anything, it is argued that worries over freedom of expression are unfounded.
Many internet freedom organizations on the other hand, including the Electronic Frontier Foundation (EFF) are horrified at the ruling. Some view it as a straight-up case of censorship, where facts about an individual that it may be in the public’s interest to know will become difficult to obtain (that public interest can be overruled in favour of privacy is considered particularly abhorrent).
‘Attempting to limit the propagation of that information by applying scattergun censorship will simply temporarily distort one part of the collective record in favor of those who can take the time and money to selectively edit away their own online blemishes. Popular search engines will list the best of everyone, and be compelled to disappear other facts.’ (EFF).
Others are concerned that because the ruling still allows personal details to be reported by newspapers and suchlike, and is not aimed at removing publicly available records, just removing them from easy accessibility through search engines, it will create widespread confusion and uncertainly,
‘This creates a real quagmire for any company offering up information online: after how long does a bankruptcy ruling become something that should be private? Is that different if the subject is a celebrity or a politician? What if they offered the information voluntarily (or sold their story) in the first place? How about drug use, or prostitution, or murder? What if a person stands for public office a few years after having their search records scrubbed?’
A further concern is that because each complaint must be tackled on a case-by-case basis, the cost will be huge in both financial terms, and in terms of tying up courts for years. This has led to the UK’s Ministry of Justice, which estimates the cost to British businesses (including many leading data and tech firms) at £360 million (US$600 million) per year, to brand the proposals ‘a regime that no one will pay for’.
Perhaps the most nuanced argument against the ECJ’s decision is one advanced by (among others) the EFF, which observes that because the ruling is only binding to search engines subject to EU regulations, we will find ourselves in a position where non-US residents can access information that is denied to Europeans, with deleterious consequences for all,
‘Meanwhile, a new market is created for mining and organizing accurate public data out of the reach of the European authorities. The record of the major search engines will be distorted, just as it was by Scientology and the Chinese government. Outside of Europe’s reach, rogue sites will collect the real information, and be more accurate than the compliant search services.’
The EFF also points out the logical fallacy of declaring information publically available, while at the same time attempting to limit access to that information,
‘The court is attempting to avoid enforcing the blanket purging of facts about ordinary individuals from the historical record while preventing the consequences of those facts becoming universally and permanently known. But publication and propagation are inseparable on a network which acts as both a decentralized historical record, and the means by which the public discovers and explores that record. When a newspaper publishes a news item, it appears online. The fact of that publication is one of the bits of information that Internet services collectively can, and do, disseminate and preserve.’
As supporters of both the right to privacy (we are a VPN review company after all!), and the right to access information on the web uncensored, this is a difficult argument to weigh into. What is clear is that as stands, the ruling is pretty much unworkable in terms of cost and practical application, especially as the ECJ does not have jurisdiction over ‘transmitters’ with no EU presence. We agree with too that the ECJ, in seeking to make information publicly available but at the same time limiting access to it, wants to have its cake and eat in a way that is also completely unworkable.
However, despite having sympathy with censorship concerns, we also feel that the entire world does not have a right to know everything about a person and their past. We have a basic human right to privacy, and while some things may be in the public interest to know (such as your accountant having a conviction for fraud), many things may be simply embarrassing, or irrelevant to most situations, but can be extremely damaging to a person’s professional or business life.
How this need for privacy can be accommodated without doing more harm than good we don’t have the answers to, but we are sure that the current ECJ ruling is not the solution.